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Random Alcohol Testing Policies: Workplace Safety versus Privacy Interests

July 17, 2013

In June, the Supreme Court of Canada affirmed an arbitration board’s ruling that an employer could not, in the circumstances, unilaterally impose a random alcohol testing policy.

Background

The employer, Irving Pulp & Paper Limited (Irving), operates a paper mill. Under the management rights clause of the collective agreement, Irving adopted a workplace alcohol testing policy for employees occupying safety sensitive positions. The policy included a universal testing provision whereby 10 percent of employees in safety sensitive positions chosen at random were to be tested every year. The policy also subjected employees to mandatory testing where there was reasonable cause to suspect that the employee of alcohol or other drug-use in the workplace, after return to work following substance abuse treatment or if the employee was involved in a workplace accident.

Eight alcohol related incidents had occurred at the paper mill in the past 15 years. In the 22 months of the application of the universal testing policy, no employee had tested positive to the alcohol test.

The Union challenged only the universal alcohol testing policy; the arbitration board concluded that management had exceeded the scope of its authority under the management rights clause and that the policy was unreasonable. On judicial review, the Court of Queen’s Bench of New Brunswick set aside the award finding inherent danger in the plant to be sufficient to justify the policy. The Union appealed the decision; the Court of Appeal dismissed the appeal. The Union appealed to the Supreme Court of Canada.

Issue

What is the scope of management’s authority to impose a random alcohol testing policy?

Analysis

The Supreme Court of Canada began its analysis by stating that a rule or policy unilaterally imposed by management must be consistent with the collective agreement; it must be reasonable. The reasonableness of the rule or policy is assessed by balancing interest. In this case, the balancing was between workplace safety and employees’ privacy.

With regards to workplace safety, the Court stated that the dangerousness of a workplace, while highly relevant to the assessment, does not alone provide justification for unilaterally imposed random alcohol testing. Employers need to prove enhanced safety risks, such as evidence of general substance abuse in the workplace in order to justify unilaterally imposed alcohol testing policies.

With regards to employee privacy, the Court pointed out that no distinction is to be drawn between testing by urine, blood or breath sample and that testing “effects a loss of liberty and personal autonomy” which are “at the heart of the right to privacy”.

The arbitration board found that the benefit to the employer from random alcohol testing policy in this dangerous workplace was not proportional to the harm to employee privacy. The arbitration board found that the safety risks related to alcohol use were very low and that expected gains to the employer were “uncertain… to minimal at best”. On the other hand, intrusion of employee privacy was seen to be severe. Accordingly, the board held that the random alcohol testing was an unreasonable. The majority of the Supreme Court of Canada held that the board’s decision was reasonable.

Implications

Employers operating in workplaces governed by a collective agreement remain free to negotiate alcohol testing policies with the union. Unilaterally imposed alcohol testing policies are acceptable where reasonable – when such a policy represents a proportional response to legitimate safety concerns and privacy interests. This case illustrates that significant weight is attributed to privacy interests and a high threshold is set for justification of infringement of these interests.

This case also creates a challenging tension for employers who are subject to stringent occupational health and safety standards and significant liability risks. Hopefully the Court will soon provide guidance on weighing these interests with privacy rights.

Decision: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,[2013] S.C.J. No. 34.

Link: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/13106/index.do